Practice Manual Chapter 4

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4.00 INTAKE AND PROCESSING OF APPEALS AND APPLICATIONS

4.10 Intake

The Registrar oversees the intake of new appeals and applications. They are screened for compliance with preliminary requirements and an appeal number is assigned. The Registrar may determine:

4.20 Streaming : Regular, Specialty, or Self-Represented

The Registrar will determine if an appeal should be handled in the "regular", "specialty", or "self-represented" stream.

4.21 Regular Stream

For appeals in the regular stream, the Registrar will make a preliminary determination whether the appeal should proceed by written submission or oral hearing. Assignment to an appeal commissioner or a panel will usually occur when the deadline for providing written submissions and evidence has passed or when the oral hearing is scheduled.

4.22 Specialty Stream

Specialty appeals may be assigned to an appeal commissioner after the mode of hearing has been determined but prior to receipt of evidence and submissions, the scheduling of an oral hearing or consideration of most preliminary matters. Generally s.29 applications are handled in the specialty stream.

4.23 Criteria for Regular or Specialty Stream

In determining whether an appeal should be assigned to the regular or specialty stream, the Registrar may consider:

4.24 Self-Represented Participants

In cases where participants are self-represented and the appeal is proceeding by oral hearing, it is recommended that the self-represented participants review the Tribunal's "Guide to Oral Hearings". When appeals involving self-represented participants are proceeding by written submission, a review of the Tribunal's "Guide to Appeals Proceeding by Written Submission" is recommended. The guides are available on this website.

The Tribunal will attempt to telephone self-represented participants prior to a hearing. The purpose of this telephone call is to discuss the appeal process and to set a date for the hearing, if one has not already been set. Telephone calls are documented and become part of the Tribunal's file. When the telephone call is made or received by an appeal commissioner, that appeal commissioner will not hear the appeal.

Shortly before a scheduled hearing, the Tribunal will attempt to telephone self-represented participants to remind them of the date, time and location of the hearing.

4.30 Mode of Hearing

The Registrar will determine whether the appeal or application proceeds by way of oral hearing or written submission. Factors the Registrar may consider include:

4.31 Objections to the Mode of Hearing

Participants may object to the mode of hearing selected by the Registrar and the Registrar may reconsider and alter the mode of hearing. At any time, after the appeal has been assigned, the presiding appeal commissioner may determine that another mode of hearing is more appropriate and may also alter the mode of hearing.

4.32 Scheduling the Hearing

Once the mode of hearing has been determined, the Tribunal will notify participants regarding: the mode of hearing; scheduling a hearing; submissions and evidence deadlines; and preliminary matters or inquiries.

4.40 Employer Notice of Intention to Participate

For appeals dealing with compensation, participants may include the worker, the worker's employer, the Board and any other person who has a direct and immediate interest in the matter [s.245(1)].

A participant, such as the employer, who does not intend to take part in the appeal should notify the Tribunal as soon as possible. This ensures that information is only provided to participants who will be taking part in the appeal.

In a worker appeal, the worker's employer is advised when the Tribunal receives notice of an appeal. The employer must complete a "Notice of Intention to Participate" form if the employer wishes to participate. If the employer does not return a completed form by the date set by the Tribunal, the Tribunal proceeds under the assumption that the employer does not wish to participate in the appeal. If an employer indicates that they do not wish to participate or does not return a completed form, no further information or notices will be provided, except for a copy of the final decision.

Failure to notify the Tribunal of an intention to participate does not preclude subsequent participation. If, for example, the employer attended an oral hearing, the employer would have the right to be heard. However, the Tribunal will not notify the employer of the oral hearing date unless the employer has indicated an intention to participate.

The Notice of Intention to Participate form, which includes a Request for Access to Documents form, is available on this website.

4.50 Employer Access to Documents

An employer may request copies of documents on file with the Tribunal. The Tribunal may: refuse to provide copies of the documents; edit copies of the documents; provide only relevant documents with specific restrictions on the employer's use of the documents; or make any other appropriate ruling regarding the disclosure of documents. There is a $25.00 fee charged to employers when they make an initial request for a copy of files or documents in the Tribunal's possession.

Prior to receiving copies of documents from the Tribunal, the employer must agree, in writing, not to use or disclose the documents for any purpose other than pursuing or responding to the appeal before the Tribunal. The Employer must also agree to keep the documents confidential and secure.

The Tribunal is required to comply with the Freedom of Information and Protection of Privacy Act ["FOIPOP"]. Disclosure of personal information is presumed by FOIPOP to be an unreasonable invasion of privacy if the personal information relates to medical, dental, psychiatric or psychological conditions. However, disclosure of personal information is not an unreasonable invasion of privacy if there is written consent to the disclosure. Otherwise, material can only be released to employers where it is necessary to ensure a fair hearing or where the issue on appeal is one in which the employer has a direct interest.

4.60 Representation

All participants before the Tribunal may be assisted by a representative of their choice. The Tribunal may communicate only with the representative and may not send copies of correspondence to both the representative and the represented participant.

Section 260 of the Act established the Workers' Advisers Program. This program provides free assistance, advice and representation to workers seeking compensation who meet the eligibility criteria [s.261]. Workers are also free to choose a representative that is not part of the Workers' Advisers Program [s. 271(1)].

If, at any point, the representative ceases to act, either the participant or the representative must advise the Tribunal in writing.

4.61 Duties of a Representative

This section is intended to provide guidance to representatives, by setting out minimum standards of behaviour the Tribunal expects of all representatives.

A representative must be prepared and should be familiar with the Board's claim or assessment file(s) and the Tribunal's rules, practices and procedures.

A representative must behave courteously and respectfully to all participants and the Tribunal during an oral hearing. Representatives should instruct their clients and witnesses on the requirement for courtesy during hearings and should take reasonable steps to dissuade clients and witnesses from disrupting a hearing.

An appeal commissioner(s) assigned to an appeal or application has the authority to control the proceeding to ensure that it is conducted in a manner that is respectful of all participants and the Tribunal, including Tribunal staff. A disruptive representative may be removed from the hearing room. A representative who is abusive to Tribunal staff may have their access to staff restricted.

A representative must respect the confidentiality of information disclosed during Tribunal proceedings and not use that information for other purposes without the consent of the participants.

When not at a hearing or during a conference call, a representative who wishes to communicate with an appeal commissioner should do so through the Tribunal's staff. In all cases communications should be copied to all participants.

Following a Tribunal decision, a representative should not write to or otherwise contact the presiding appeal commissioner(s) concerning the decision. Any questions should be directed to the Chief Appeal Commissioner.

4.70 Appeal Readiness

The Tribunal requires the participant who has filed an appeal to notify the Tribunal when the appeal is ready to proceed. This allows the Tribunal to deal with appeals efficiently.

Notice of readiness may be given at the time the notice of appeal is filed. Subsequently, it may be given in writing or by calling the Registrar or Scheduling Coordinator (Halifax local calls: 424-2250; long distance calls: 1-800-274-8281). The Registrar may set initial submission deadlines which will be finalized when the Tribunal is notified that an appeal is ready to proceed.

If the appeal is not ready to proceed within 90 days of filing the appeal, the Tribunal must be notified of the reasons for the delay and be advised when the appeal will be ready to proceed. The Tribunal may provide additional time to give notice that an appeal is ready to proceed. The Tribunal's decision to extend the time to give notice may be based upon the following factors:

Only in exceptional circumstances will an extension beyond 180 days be granted. The Tribunal's decision to extend the readiness deadlines beyond 180 days will be based solely upon consideration of the potential prejudice to the participants.

If the appeal is not ready to proceed within 180 days of the date that the notice of appeal was received by the Tribunal, the Tribunal may, instead of extending its deadlines:

All appeals should be resolved within one year from the date the Tribunal received the notice of appeal.

4.71 Postponements

Once an appeal is ready to proceed and has been set down by the Tribunal, it is anticipated that in all but exceptional circumstances the appeal will proceed as scheduled. If a participant cannot attend a scheduled hearing or meet submission and evidence deadlines, the participant must call or write the Tribunal immediately. Postponement requests should be made at the earliest opportunity and should include reasons for the request and the length of the postponement being sought.

When dealing with a postponement request, the Tribunal may consider a variety of factors including:

If the request relates to the unavailability of a witness on the date scheduled for the hearing, the Tribunal may also consider the reason the witness is unavailable, efforts made by the participant to have the witness available and the importance of the witness to the resolution of the appeal. If the request is made so that a participant can obtain representation, the Tribunal will also consider whether there was an unreasonable delay in seeking representation.

4.72 Possible Outcomes of a Postponement Request

The possible outcomes of a postponement request include:

If a postponement request is granted by an appeal commissioner(s) at a hearing, the Tribunal will ensure that all participants anticipated at the hearing are notified of the postponement.

4.80 Rights of Participants

All participants in an appeal or application before the Tribunal have the right to:

Chapter 3: Initiating the appeal or application <Chapter 4: Intake and processing of appeals and applications> Chapter 5: Disposition of appeals and applications